Case 6:08-cv-00089-RAS Document 104 Filed 12/02/2008 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON v. C. A. NO. 6:08-CV-00089 CISCO SYSTEMS, INC., RICK FRENKEL, MALLUN YEN & JOHN NOH CISCO SYSTEMS, INC. S AMENDED MOTION TO COMPEL TO THE HONORABLE COURT: Defendant Cisco Systems, Inc. ( Defendant or Cisco ) seeks an order overruling Plaintiff Eric Albritton s ( Albritton or Plaintiff ) objections to interrogatories, which were properly served on him pursuant to Rule 33 of the Federal Rules of Civil Procedure, and limiting all evidence and argument of the Complained of Statements to those contained in the complaint, and in support would show as follows: I. INTRODUCTION This is a defamation action concerning two articles in an internet publication called the Patent Troll Tracker ( PTT ). The articles are attached to Plaintiff s complaint which points out certain words and phrases from the articles in paragraphs 16 and 17 that he contends are defamatory. Although the phrases libelous statements ( 24), false and defamatory statements regarding Albritton ( 28) and false and libelous statements ( 32) are pled, these terms are not defined. Seeking definition for these terms, Defendant propounded five interrogatories asking Plaintiff to identify the statements that he is complaining about (the Complained of Statements ). This information was needed so that Defendant can file a tightly focused motion 5369166v.1 Page 1 of 6
Case 6:08-cv-00089-RAS Document 104 Filed 12/02/2008 Page 2 of 6 for summary judgment addressing only the statements of fact (as opposed to rhetoric, hyperbole or opinion) of and concerning Albritton. The interrogatories were served on October 15, 2008 by electronic mail. Plaintiff did not provide any substantive responses (other than to point back to the articles) but rather, on November 17, 2008 asserted identical objections to each of the five interrogatories. (The Interrogatories and Objections thereto are attached as Exhibit A and incorporated herein.) The identical objections were: Plaintiff objects to this Interrogatory in that its answer may be determined by examining the business records of Cisco Systems, Inc. and Richard Frenkel. Fed. R. Civ. P. 33(d). Plaintiff further objects to this Interrogatory as unnecessarily cumulative and harassing in that Plaintiff has expressly pled the statements at issue and discussed them at length during his deposition. The objections are verified by Albritton although somewhat ambiguously, as it recites that she prepared the answers which are said to be true and correct. Albritton is a man. These objections are neither factually correct nor legally valid and should be overruled. The Plaintiff should be precluded from providing any additional evidence or argument to vary the Complained of Statements as set forth in the language of Plaintiff s complaint. II. THE OBJECTIONS ARE FACTUALLY AND LEGALLY IMPROPER First, Plaintiff maintains that Cisco can determine what Albritton complains about by looking at Cisco and Frenkel s business records citing Fed. R. Civ. P. 33(d). Rule 33(d) does give a party responding to an interrogatory the option to respond by producing or specifying certain responsive business records. However, the responding party must specify the records from which the answer may be derived and must be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer to the interrogatory may be ascertained. Fed. R. Civ. P. 33(d). Here, the 5369166v.1 Page 2 of 6
Case 6:08-cv-00089-RAS Document 104 Filed 12/02/2008 Page 3 of 6 Plaintiff did not specify any records and did not give any detail which would permit Cisco to locate the responsive records. Furthermore, the Defendants have no business records that reveal what Plaintiff complains about in this lawsuit. Even if there were, Cisco is entitled to a sworn answer from Plaintiff himself setting out the language. Because the Plaintiff has failed to meet the requirements of Rule 33(d) to specify the particular records from which the answer may be derived, he has wholly failed to satisfy his burden under the rule. Contention interrogatories which ask a party to state the facts upon which it bases a claim or defense, are a permissible form of written discovery. Fed. R. Civ. P. 33(a)(2). Such interrogatories are not objectionable on the basis that they ask for the responding party s opinion or contention as it relates to facts or the application of law to fact. Id. The Federal courts in Texas have repeatedly held that responses to contention interrogatories must be in narrative form and that responses which merely cite Rule 33(d) in response are insufficient. See Barkley v. Life Insurance Co. of North America, No. 3-07-CV-1498-M, 2008 WL 450138 at *1 (N.D. Tex. Feb. 19, 2008), as modified, (N.D. Tex. Mar. 12, 2008) (Kaplan, J.), citing In re Pabst Licensing GmbH Patent Litigation, No. 99-MD-1298, 2001 WL 797315 at *9 (E.D. La. Jul. 12, 2001); Alexander v. Hartford Life and Acc. Ins. Co., No. 3-07-CV-1489-M, 2008 WL 906786 at *4 (N.D. Tex. Apr. 3, 2008) (Kaplan, J.). At least one district court in Florida has done the same. See Border Collie Rescue, Inc. v. Ryan, Case No. 3:04-cv-568-J-32HTS, 2005 WL 662724 (M.D.Fla. 2005) (Snyder, J.). Second, Plaintiff s contention that this discovery is unnecessarily cumulative and harassing because Plaintiff has expressly pled the statements at issue and discussed them at length during his deposition is factually and legally incorrect. The complaint sets out only certain words and phrases. One of the complained of phrases found in paragraph 17, quoting 5369166v.1 Page 3 of 6
Case 6:08-cv-00089-RAS Document 104 Filed 12/02/2008 Page 4 of 6 from the October 18 article, is another example of the abusive nature of litigation in the Banana Republic of East Texas. When asked at his deposition whether he contended that that phrase is defamatory of you? His answer was No although he added a rambling explanation. (Albritton deposition at p. 69, attached as Exhibit B.) The Banana Republic statement (which was on the website for only 24 hours as Plaintiff admits and which has achieved widespread publicity only because of this lawsuit) is arguably not of and concerning Plaintiff, a constitutionally compelled element of Plaintiff s cause of action (see New York Times v. Sullivan, 376 U.S. 254 (1964)) and is almost certainly rhetoric, hyperbole or opinion which are not actionable under Texas or First Amendment jurisprudence. See Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970); ( [W]e hold that the imposition of liability on such a basis was constitutionally impermissible-that as a matter of constitutional law, the word blackmail in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review. [E]ven the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler s negotiating position extremely unreasonable. ) See also, Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp., 784 F.2d 674, 679 (5 th Cir. 1986) ( Opinions and beliefs reside in an inner sphere of human personality and subjectivity that lies beyond the reach of the law and is not subject to its sanctions. Similarly, actions for fraud or misrepresentation must be based on objective statements of fact, not expressions of personal opinion. The law wisely declines to tread in the latter area because, in some deep sense, everyone is entitled to his own opinion. Chacun à son goǔt and De gustibus non est disputandum are time-honored expressions of this principle. ) 5369166v.1 Page 4 of 6
Case 6:08-cv-00089-RAS Document 104 Filed 12/02/2008 Page 5 of 6 Third, the Plaintiff says, subject to the objections, see the attached articles. This is, of course, no answer because while the articles are to be construed as a whole (to avoid matters being taken out of context), the defendants are still entitled to determine what in the article the Plaintiff complains about. For these reasons, and because Plaintiff limited its pleadings and discovery to these words and phrases, Defendant would move the Court to limit Plaintiff to those phrases specified in the complaint III. CONCLUSION AND PRAYER The motion should be granted and the Plaintiff s objections overruled and he should be precluded from providing any additional evidence or argument to vary the complained of Statements as articulated in the Complaint. Respectfully submitted, JACKSON WALKER L.L.P. By: /s/ Charles L. Babcock Charles L. Babcock Federal Bar No.: 10982 Email: cbabcock@jw.com Crystal J. Parker Federal Bar No.: 621142 Email: cparker@jw.com 1401 McKinney Suite 1900 Houston, Texas 77010 (713) 752-4200 (713) 752-4221 Fax ATTORNEYS FOR DEFENDANT CISCO SYSTEMS, INC. 5369166v.1 Page 5 of 6
Case 6:08-cv-00089-RAS Document 104 Filed 12/02/2008 Page 6 of 6 CERTIFICATE OF CONFERENCE Immediately upon receipt of the objections, in light of the upcoming discovery and motion deadline, lead defense counsel consulted with lead Plaintiff s counsel in person on November 17, 2008. Agreement could not be reached to fully respond to the interrogatories. The next day, associate counsel asked for clarification of the request (which was immediately provided) and promised a written response by close of business on November 19, 2008. 1 The undersigned called associate counsel (Ms. Peden) prior to the close of business on November 19, 2008 (Pacific time where Ms. Peden resides) but was immediately put into her voice mail. Later that day, Mr. Patton, Ms. Peden and I held another conversation regarding discovery. Plaintiff through counsel, refused to withdraw objections and answer interrogatories. On November 26, 2008, counsel again contacted Ms. Peden regarding this amended motion, which is in substance the same and only changes the relief requested due to the fact that the discovery period has now ended. However, an agreement was still not reached regarding the relief requested. Certified this 26th day of November, 2008. /s/ Charles L. Babcock Charles L. Babcock CERTIFICATE OF SERVICE This is to certify that on this 26th day of November, 2008, a true and correct copy of the foregoing was served via electronic mail upon: George L. McWilliams James A. Holmes 406 Walnut 605 South Main Street, Suite 203 P.O. Box 58 Henderson, Texas 75654 Texarkana, Texas 75504-0058 Attorney for Plaintiff Eric Albritton Attorney for Defendant Richard Frenkel Patricia L. Peden Law Offices of Patricia L. Peden 5901 Christie Avenue 4605 Texas Boulevard Suite 201 P.O. Box 5398 Nicholas H. Patton Patton, Tidwell & Schroeder, LLP Emeryville, CA 94608 Texarkana, Texas 75505-5398 Attorney for Plaintiff Eric Albritton Attorney for John Ward, Jr. /s/ Charles L. Babcock Charles L. Babcock 1 A fact she now denies. 5369166v.1 Page 6 of 6
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Case 6:08-cv-00089-RAS Document 104-4 Filed 12/02/2008 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ERIC M. ALBRITTON v. C. A. NO. 6:08-CV-00089 CISCO SYSTEMS, INC., RICK FRENKEL, MALLUN YEN & JOHN NOH ORDER GRANTING CISCO SYSTEMS, INC. S MOTION TO COMPEL PLAINTIFF S INTERROGATORY RESPONSES Came on for consideration Cisco Systems, Inc. s Motion to Compel Plaintiff s Interrogatory Responses ( Motion ) in the above-referenced matter. The Court, having considered the Motion and any opposition thereto, GRANTS the Motion and ORDERS as follows: It is ORDERED that the motion should be granted Plaintiff s objections overruled. It is further ORDERED that Plaintiff is precluded from providing any additional evidence or argument to vary the complained of statements as articulated in the Complaint. SO ORDERED. 5364987v.2 -Page 1 of 1- ORDER GRANTING CISCO SYSTEMS, INC. S MOTION TO COMPEL PLAINTIFF S INTERROGATORY RESPONSES